BARENO v. SAN DIEGO COMMUNITY COLLEGE DISTRICT

“Plaintiff Leticia Bareno appeals from a judgment entered in favor of defendants San Diego Miramar College (the College), San Diego Community College District, and San Diego Community College District Administrative Facilities Corporation.

In early 2013, Bareno was disciplined by her employer, the College, in relation to her employment as an administrative assistant. Thereafter, Bareno required medical treatment and accompanying leave from work, and she requested medical leave from her supervisor. Bareno provided medical certification for this request for leave. After the time frame specified in Bareno’s initial request for leave had ended, Bareno continued to be absent from work. Bareno had attempted to e-mail her supervisor a recertification of her need for additional medical leave, but the College claimed that Bareno’s supervisor did not receive any such request from Bareno for additional leave. As a result, after Bareno continued to be absent from work for an additional five consecutive days, the College took the position that she had “voluntarily resigned.” After Bareno learned that the College considered her to have voluntarily resigned as a result of her continued absence from work, Bareno attempted to provide the College with information regarding the medical necessity of the leave that she had taken. The College refused to reconsider its position.

Bareno filed suit against all three defendants, alleging that in effectively terminating her employment, SDCCD retaliated against her for taking medical leave, in violation of Government Code section 12945.2, the Moore-Brown-Roberti Family Rights Act, commonly referred to as the California Family Rights Act (CFRA). (See Cal. Code Regs., tit. 2, § 11087, subd. (b).) SDCCD moved for summary judgment on Bareno’s sole claim for retaliation under CFRA, and the trial court granted the motion.

On appeal, Bareno contends that the trial court erred in granting summary judgment on her CFRA retaliation claim because there remain triable issues of material fact in dispute. We agree. Because there remain material issues in dispute and the record is capable of supporting a judgment in favor of Bareno, the trial court erred in granting summary judgment in favor of SDCCD. We therefore reverse the judgment and remand the matter for further proceedings.”

Holdings:
[1] fact issue existed as to whether employee properly notified community college district that she was taking medical leave;

[2] fact issue existed as to whether employee submitted sufficient medical certification to support her need for medical leave; and

[3] fact issue existed as to whether district decided to interpret employee’s absences as “voluntary resignation” in retaliation for employee taking CFRA medical leave.

Reversed and remanded.

Valencia & Cywinska, Mark Joseph Valencia, Los Angeles, and Izabela Cywinska Valencia for Plaintiff and Appellant.
Artiano Shinoff, Ray J. Artiano, Los Angeles, Jack M. Sleeth, Jr., and Paul V. Carelli IV, San Diego, for Defendant and Respondent.
Fourth District, Division 1, 1/13/17 decision by Aaron, O’Rourke and Irion concurring; ___ Cal.Rptr.3d ___, 2017 WL 128143.

Full Decision

HERNANDEZ v. ROSS STORES, INC.

“Defendant and appellant Ross Stores, Inc. (Ross) appeals the denial of its motion to compel arbitration. Plaintiff and respondent Martina Hernandez was employed at a Ross warehouse in Moreno Valley. She filed a single-count representative action under the California Private Attorney General Act, Labor Code section 2698 et. seq. (PAGA) alleging Ross had violated numerous Labor Code laws, and sought to recover PAGA civil penalties for the violations.

Ross insisted that Hernandez must first arbitrate her individual disputes showing she was an “aggrieved party” under PAGA and then the PAGA action could proceed in court. The trial court found, relying on Iskanian v. CLS Transportation Los Angeles LLC (2014) 59 Cal.4th 348, 387 (Iskanian) that the PAGA claim was a representative action brought on behalf of the state and did not include individual claims. As such, it denied the motion to compel arbitration because there were no individual claims or disputes between Ross and Hernandez that could be separately arbitrated.

On appeal, Ross raises the issue of whether under the Federal Arbitration Act (FAA) an employer and employee have the preemptive right to agree to individually arbitrate discreet disputes underlying a PAGA claim while leaving the PAGA claim and PAGA remedies to be collectively litigated under Iskanian. We uphold the trial court’s denial of the motion to compel arbitration.”

Wolflick & Simpson, David B. Simpson and Gregory D. Wolflick, Glendale, for Defendant and Appellant.
Law Offices of Neal J. Fialkow, Neal J. Fialkow and James S. Cahill, Los Angeles, for Plaintiff and Respondent.
Fourth District, Division 2, 12/7/14 decision by Miller, Hollenhorst and Slough concurring, ordered published 1/3/17; ___ Cal.Rptr.3d ___, 7 Cal.App.5th 171, 2016 WL 7603756, 2017 Daily Journal D.A.R. 75.

Full Decision

MONTANO v. WET SEAL RETAIL, INC.

“The Wet Seal Retail, Inc. (Wet Seal) appeals from the denial of its motion to compel arbitration of this wage and hour action brought by employee Elizabeth Montano.  Wet Seal also challenges the grant of Montano’s motion to compel discovery responses.  We affirm the order denying the motion to compel arbitration and dismiss the challenge to the discovery order as nonappealable.”

Relying on Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 173 Cal.Rptr.3d 289, 327 P.3d 129 (Iskanian), the decision reasoned, “Given that “the Legislature’s purpose in enacting the PAGA was to augment the limited enforcement capability of the … Agency by empowering employees to enforce the Labor Code as representatives of the Agency …. [a]n agreement by employees to waive their right to bring a PAGA action serves to disable one of the primary mechanisms for enforcing the Labor Code. Because such an agreement has as its ‘object, … indirectly, to exempt [the employer] from responsibility for [its] own … violation of law,’ it is against public policy and may not be enforced. (Civ.Code, § 1668.)” (Iskanian, supra, 59 Cal.4th at p. 383, 173 Cal.Rptr.3d 289, 327 P.3d 129.) “Such an agreement also violates Civil Code section 3513 ‘s injunction that ‘a law established for a public reason cannot be contravened by a private agreement.’ (Ibid.) The PAGA was clearly established for a public reason, and agreements requiring the waiver of PAGA rights would harm the state’s interests in enforcing the Labor Code and in receiving the proceeds of civil penalties used to deter violations.” (Iskanian, supra, at p. 383, 173 Cal.Rptr.3d 289, 327 P.3d 129.”

Sheppard, Mullin, Richter & Hampton, Ryan D. McCortney, Costa Mesa, and Jason M. Guyser, for Defendant and Appellant.
Scott Cole & Associates, Matthew R. Bainer and Molly A. DeSario, Oakland, for Plaintiff and Respondent.
Second District, Division 4, 1/7/15 decision by Epstein, Willhite and Manella concurring, reposted upon lifting of bankruptcy stay; 232 Cal.App.4th 1214, 182 Cal.Rptr.3d 220, 24 Wage & Hour Cas.2d (BNA) 131, 15 Cal. Daily Op. Serv. 210, 2015 Daily Journal D.A.R. 265, 2015 WL 84677.

Full Decision

SILVA v. SEE’S CANDY SHOPS, INC.

“Pamela Silva filed an action against her former employer, See’s Candy Shops, Inc., alleging wage and hour violations. Silva brought the action in her individual capacity, on behalf of a class of See’s Candy employees, and on behalf of aggrieved workers under the Private Attorney General Act of 2004 (PAGA). The court certified a class on Silva’s claims challenging two of See’s Candy’s policies pertaining to the calculation of employee work time:  (1) a rounding policy, which calculates timeclock punches to the nearest tenth of an hour; and (2) a grace-period policy, which permits employees to clock in 10 minutes before and after a shift, but calculates work time from the employee’s scheduled start/end times.

In a prior appeal, we granted See’s Candy’s writ petition challenging the trial court’s dismissal of See’s Candy’s affirmative defense that its rounding policy was lawful.  (See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889 (See’s Candy).) After remand, See’s Candy successfully moved for summary adjudication on Silva’s PAGA cause of action. In a later proceeding, the court granted summary judgment in See’s Candy’s favor on all of Silva’s remaining claims.

In this appeal, Silva challenges the summary adjudication order on her PAGA claim and the summary judgment on all remaining causes of action. She raises numerous contentions. We determine the court erred in granting summary judgment with respect to certain of Silva’s individual claims, but the court properly entered judgment in See’s Candy’s favor on all remaining claims, including the PAGA cause of action and the class-certified claims.”

Sullivan Law Group, William B. Sullivan and Eric K. Yaeckel, for Plaintiff and Appellant.
Jackson Lewis, David S. Bradshaw, James T. Jones, Evan D. Beecher and Paul F. Sorrentino, for Defendant and Respondent.
Fourth District, Division 1, 12/9/16 decision by Haller, Benke and Aaron concurring, ordered published 1/5/17; ___ Cal.Rptr.3d ___, 2016 WL 7647657, 2017 Daily Journal D.A.R. 163.

Full Decision

ALASKA AIRLINES, INC. v. SCHURKE

Flight Attendant Laura Masserant and her union, the Associated Flight Attendants, were granted summary judgment on her administrative complaint under the Washington Family Care Act holding she could use her December vacation leave to care for her sick child in May. The Ninth Circuit reversed, stating in pertinent part, “The issue before us is not whether Masserant is entitled to use her vacation leave, scheduled for December, in May, to care for her sick child. Though that is what the case is all about, it is not the issue posed for us. The issue before us is limited to Railways Labor Act preemption, that is, whether the state administrative board or the collective bargaining agreement grievance procedure ought to decide whether Masserant is entitled so to use her December vacation leave in May.”

The decision reasoned that the claim was a “minor dispute” under the Railways Labor Act interpreting rights guaranteed by the collective bargaining agreement. Accordingly, Masserant was required to use the collective bargaining agreement grievance procedure to resolve her claim.

Dissenting, Judge Christen wrote that the flight attendant’s claim was not preempted because the right she asserted arose from the Washington Family Care Act, if it existed at all, and did not depend upon the collective bargaining agreement.

Mark Andrew Hutcheson (argued) and Rebecca Francis, Davis Wright Tremaine LLP, Seattle, Washington, for Plaintiff-Appellant.
James Paul Mills (argued), Tacoma, Washington, for Defendants-Appellees.
Kathleen Phair Barnard (argued), Schwerin Campbell Barnard Iglitzin & Lavitt LLP, Seattle, Washington, for Intervenor-Defendant-Appellee.
Ninth Cir., 1/25/17 decision by Kleinfeld, Wallace concurring, Christen dissenting; ___ F.3d ___, 2017 WL 360557.

Full Decision

NAVARRO v. ENCINO MOTORCARS, LLC

“On remand from the Supreme Court, Encino Motorcars, LLC v. Navarro, –––U.S. ––––, 136 S.Ct. 2117, 195 L.Ed.2d 382 (2016), we must consider anew whether the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–219, requires automobile dealerships to pay overtime compensation to service advisors. The district court held that service advisors fall within the exemption from the overtime-compensation requirement for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles,” id. § 213(b)(10)(A), on the ground that a service advisor is a “salesman … primarily engaged in … servicing automobiles.” Because we conclude that Congress did not intend for the exemption to encompass service advisors, we reverse and remand for further proceedings.”

Keven Steinberg (argued), Thompson Coe & O’Meara, Los Angeles, California; Nancy Bregstein Gordon, James A. Feldman, and Stephanos Bibas, University of Pennsylvania Law School Supreme Court Clinic, Philadelphia, Pennsylvania; for Plaintiffs–Appellants.
Todd B. Scherwin (argued), Karl R. Lindegren, and Colin P. Calvert, Fisher & Phillips LLP, Irvine, California; Wendy McGuire Coats, Fisher & Phillips LLP, San Francisco, California; for Defendant–Appellee.
Ninth Circuit, 1/9/17 decision by Graber, Wardlaw and Mahan concurring; ___ F.3d ___, 2017 WL 74713.

Full Decision

REYNAGA v. ROSEBURG FOREST PRODUCTS

“Appellant Efrain Reynaga and his son Richard Reynaga worked as millwrights for Roseburg Forest Products (“Roseburg”). According to Efrain, he and his son were the only millwrights of Mexican descent at Roseburg. Efrain alleges that during the course of his employment, he was subjected to disparate treatment and a hostile work environment because of his race or national origin.

Efrain developed a contentious relationship with lead millwright, Timothy Branaugh (“Branaugh”), who allegedly harassed Efrain with racially disparaging comments. In October and December 2009, Efrain lodged verbal and written complaints with Roseburg management, alleging racial harassment in the workplace. In response, Roseburg initiated an investigation into Efrain’s allegations and ultimately rearranged Branaugh’s work schedule so that he would not be on the same shift as Efrain.

On January 9, 2010, Efrain and Richard arrived at work to find Branaugh assigned to the same shift. After notifying Roseburg that they would not work in a hostile environment, Efrain and Richard immediately left the premises. A few days later, Efrain and Richard showed up to work but refused to complete their shift because Branaugh was also scheduled for work at the same time. A supervisor then suspended Efrain and Richard. On January 18, 2010, Roseburg terminated Efrain and Richard’s employment.”

“ … On July 31, 2012, Efrain filed a First Amended Complaint that alleged three causes of action for discrimination under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”): (1) hostile work environment; (2) disparate treatment; and (3) retaliation. Efrain also alleged a fourth cause of action for relief under Oregon state law for disparate treatment (O.R.S. § 659A.030(1)(a)) and hostile work environment (O.R.S. § 659A.030(1)(b)).”

The district court granted summary judgment in favor of Roseburg on all claims. Efrain timely appealed. The panel reversed in part and affirm in part the district court’s ruling.

The decision reasoned, “As to Efrain’s hostile work environment claim, we hold that a reasonable trier of fact could conclude that (1) Branaugh’s conduct was sufficiently severe or pervasive to create a hostile work environment, and (2) Roseburg knew about Branaugh’s misconduct and failed to take effective remedial action. As to Efrain’s disparate treatment claim, we hold that Efrain has demonstrated the necessary prima facie case to survive summary judgment based on (1) Roseburg terminating Efrain’s employment and (2) breaking into Efrain’s locker. We further hold that there is a genuine dispute of fact as to Roseburg’s discriminatory intent regarding those challenged actions. Finally, as to Efrain’s retaliatory termination claim, we hold that a reasonable trier of fact could conclude that Roseburg’s proffered reason for terminating Efrain was pretextual.”

The decision’s analysis of comparators and pretext provide helpful guidance. “Efrain bases his disparate treatment claim on a number of alleged instances of discriminatory employment actions, the foremost being his termination. Efrain alleges that his employment was terminated because of his race or national origin, and/or because he made complaints about being discriminated against. The district court determined that even assuming Efrain could make out a prima facie case of disparate treatment based on his termination, he could not establish that Roseburg’s articulated, non-discriminatory reason for the termination was pretextual.

We disagree, and hold that Efrain has established the necessary disputes of material fact to survive summary judgment. Roseburg concedes that Efrain has satisfied the first three elements of the prima facie case, but maintains that Efrain has not shown that similarly situated employees were treated more favorably because there is no evidence that non-Hispanic employees have walked off the job (like Efrain) and not been terminated.

Roseburg is correct that there is no evidence in the record of similarly situated employees being treated more favorably in that precise manner. But there is sufficient evidence to give rise to an inference of discrimination based on two non-Hispanic employees (Branaugh and Mike Martin) being treated more favorably than Efrain. The record indicates that Branaugh was hardly reprimanded (and, significantly, not terminated) after several complaints were made about his hostile behavior, and Martin, a white employee, was not subjected to the same lock-cutting intrusion as Efrain. We therefore hold that Efrain has presented sufficient evidence to satisfy the fourth element of his prima facie case. Because Efrain has demonstrated a prima facie case, the burden shifts to Roseburg to provide a legitimate, non-discriminatory reason for the termination. See Vasquez, 349 F.3d at 641.

Roseburg contends that it terminated Efrain for walking off the job on January 9, 2010, and for refusing to work as scheduled on January 13, 2010. In response, Efrain presents sufficient evidence to establish a genuine dispute of material fact as to whether Roseburg’s claimed reasons for termination were pretextual. In January 2010, with full knowledge of Branaugh’s behavior, Roseburg required Efrain to work at the same site as Branaugh. Roseburg thereby conditioned Efrain’s employment on his willingness to work with a coworker who had a proven history of repeatedly and persistently harassing Efrain based on his race and national origin. This fact, along with the evidence of Roseburg’s failure to ever legitimately reprimand Branaugh, is sufficient to establish a genuine dispute of fact as to Roseburg’s discriminatory intent in firing Efrain. Accordingly, the district court erred in granting summary judgment in favor of Roseburg on the discriminatory termination claim.”

Dissenting in part, Judge Bea wrote that he concurred in the majority’s opinion reversing the district court’s summary judgment on the plaintiff’s retaliatory termination claim. He dissented in part because he believed the employer took prompt and effective action to rectify the hostile work environment experienced by the plaintiff and terminated him only after he repeatedly refused to work his assigned shifts.

Marianne G. Dugan (argued), Eugene, Oregon, for Plaintiff–Appellant.
Jason Montgomery (argued) and Dan W. Clark, Dole Coalwell Clark Mountainspring & Mornarich P.C., Roseburg, Oregon, for Defendant–Appellee.
Ninth Circuit, 1/26/17 decision by Pregerson, Owens concurring, Bea dissenting; ___ F.3d ___, 2017 WL 370862.

Full Decision

BRISENO v. CONAGRA FOODS, INC.

“This appeal requires us to decide whether, to obtain class certification under Federal Rule of Civil Procedure 23, class representatives must demonstrate that there is an “administratively feasible” means of identifying absent class members. Defendant-Appellant ConAgra Foods, Inc. (“ConAgra”) urges us to reverse class certification because the district court did not require Plaintiff-Appellee Robert Briseno and the other named class representatives (collectively, “Plaintiffs”) to proffer a reliable way to identify members of the certified classes here—consumers in eleven states who purchased Wesson-brand cooking oils labeled “100% Natural” during the relevant period.

We have never interpreted Rule 23 to require such a showing, and, like the Sixth, Seventh, and Eighth Circuits, we decline to do so now. See Sandusky Wellness Ctr., LLC, v. Medtox Sci., Inc., 821 F.3d 992, 995–96 (8th Cir. 2016); Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015); Mullins v. Direct Digital, LLC, 795 F.3d 654, 658 (7th Cir. 2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 1161, 194 L.Ed.2d 175 (2016). A separate administrative feasibility prerequisite to class certification is not compatible with the language of Rule 23. Further, Rule 23’s enumerated criteria already address the policy concerns that have motivated some courts to adopt a separate administrative feasibility requirement, and do so without undermining the balance of interests struck by the Supreme Court, Congress, and the other contributors to the Rule. We therefore affirm.”

Angela Spivey (argued), McGuireWoods LLP, Atlanta, Georgia; R. Trent Taylor, McGuireWoods LLP, Richmond, Virginia; E. Rebecca Gantt, McGuireWoods LLP, Norfolk, Virginia; A. Brooks Gresham and Laura E. Coombe, McGuireWoods LLP, Los Angeles, California; for Defendant–Appellant.
Adam Levitt (argued) and Edmund S. Aronowitz, Grant & Eisenhofer P.A., Chicago, Illinois; Mary S. Thomas, Grant & Eisenhofer P.A., Wilmington, Delaware; Ariana J. Tadler, Henry J. Kelston, Meagan Keenan, and Carey Alexander, Milberg LLP, New York, New York; David E. Azar, Milberg LLP, Los Angeles, California; for Plaintiff–Appellee.
Ninth Cir., 1/3/17 decision by Friedland, Fletcher and Christen concurring; 844 F.3d 1121, 2017 Daily Journal D.A.R. 63.

Full Decision

CHAN HEALTHCARE GROUP, PS v. LIBERTY MUTUAL FIRE INSURANCE CO.

“This consolidated appeal presents an issue of first impression in our circuit, namely the scope of appellate jurisdiction to review a district court’s remand order in a class action case founded on federal question jurisdiction. Remand orders are not appealable as a matter of course. 28 U.S.C. § 1447(d). Nonetheless, as part of the Class Action Fairness Act of 2005 (“CAFA”), Congress created an exception under 28 U.S.C. § 1453(c)(1) that permits courts of appeals to accept appeals from remand orders in cases that are removed “under this section.” Joining our sister circuits, we conclude that this interlocutory review provision is limited to orders granting or denying remand of diversity class actions brought and removed under CAFA.”

Holdings:
[1] statutory exception to general rule that remand orders were not reviewable on appeal applied only to orders granting or denying remand of diversity class actions brought and removed under Class Action Fairness Act (CAFA), not remand orders in class action case that was predicated on federal question jurisdiction, and

[2] provider’s reply brief was first paper that provided basis for removal, thereby triggering 30-day period for insurer to remove case.

Vacated in part.

Joshua S. Lipshutz (argued) and Joseph C. Hansen, Gibson Dunn & Crutcher LLP, San Francisco, California; Russell R. Yager, Vinson & Elkins LLP, Dallas, Texas; John M. Silk, Wilson Smith Cochran Dickerson, Seattle, Washington; for Defendants–Appellants/Petitioners.
David Elliott Breskin (argued) and Cynthia J. Heidelberg, Breskin Johnson & Townsend PLLC, Seattle, Washington, for Plaintiff–Appellee/Respondent.
Ninth Circuit, 1/3/17 decision by McKeown, Tallman and Christen concurring; 844 F.3d 1133, 2017 Daily Journal D.A.R. 57.

Full Decision